1.4 Concurrent Ownership
Key Takeaways
- Tenancy in common is the default co-ownership form with no right of survivorship
- Joint tenancy requires the four unities (TTIP) and has right of survivorship
- Tenancy by the entirety is reserved for married couples and cannot be unilaterally severed
- A joint tenant can sever the joint tenancy by inter vivos conveyance, creating tenancy in common
- Co-tenants have rights to share rents and may seek partition
When two or more persons share ownership of property simultaneously, they hold as co-tenants. Each co-tenant has an undivided right to possess the entire property.
Types of Concurrent Estates
1. Tenancy in Common
The tenancy in common is the default form of concurrent ownership in most jurisdictions.
Characteristics:
- No right of survivorship: Each tenant's interest passes through their estate at death
- Only unity of possession required: Each tenant has right to possess the whole
- Freely transferable: Can be conveyed, devised, or inherited
- Unequal shares permitted: Tenants may own different fractional interests
Example: O conveys "to A and B." Without additional language indicating joint tenancy, A and B hold as tenants in common.
2. Joint Tenancy
A joint tenancy includes a right of survivorship: when one joint tenant dies, their interest automatically passes to the surviving joint tenant(s).
The Four Unities (TTIP):
| Unity | Requirement |
|---|---|
| Time | All interests acquired simultaneously |
| Title | All acquired through same instrument |
| Interest | All have equal shares and same type |
| Possession | All have right to possess whole |
Creation Language: "to A and B as joint tenants with right of survivorship" or similar express language. Some jurisdictions require specific survivorship language.
Modern Trend: Many jurisdictions allow a sole owner to create a joint tenancy by conveying directly to themselves and another, without the traditional requirement of using a "straw man" intermediary.
3. Tenancy by the Entirety
Available only to married couples in jurisdictions that recognize it. Functions similarly to joint tenancy but with additional protections.
Characteristics:
- Right of survivorship: Surviving spouse takes entire property
- Cannot be unilaterally severed: Neither spouse can transfer their interest alone
- Protected from individual creditors: Creditors of one spouse generally cannot reach the property
- Requires five unities: Time, Title, Interest, Possession + Marriage
Severance: Only by:
- Mutual agreement and joint conveyance
- Divorce (converts to tenancy in common)
- Death of one spouse
Severance of Joint Tenancy
A joint tenancy can be converted to a tenancy in common through severance:
Acts That Sever
| Act | Effect |
|---|---|
| Inter vivos conveyance | Severs as to conveying tenant; new owner holds as tenant in common with remaining joint tenants |
| Mortgage (Title Theory) | Severs joint tenancy by transferring legal title to mortgagee |
| Mortgage (Lien Theory) | Does NOT sever—mortgage is only a lien |
| Lease | Jurisdictions split on whether this severs |
| Contract to sell | May create equitable conversion that severs |
| Murder of co-tenant | Jurisdictions vary; some prevent murderer from taking by survivorship |
Acts That Do NOT Sever
- Devise in will (right of survivorship defeats will)
- Secret intent to sever
- Mortgage in lien theory state (unless foreclosed)
- Filing a partition action (severance occurs only upon final judgment)
- Negotiations to sell or partition
Murder of Co-Tenant
When one joint tenant murders another, jurisdictions handle survivorship differently:
| Approach | Effect |
|---|---|
| Constructive Trust | Murderer holds legal title but as constructive trustee for victim's estate |
| Severance at Death | Murder severs joint tenancy; murderer takes only their 1/2 as TIC |
| Statutory Forfeiture | Murderer forfeits entirely; victim's estate takes all |
Most jurisdictions prevent the murderer from profiting through the "slayer statute" or equitable principles.
Rights and Duties of Co-Tenants
Possession
- Each co-tenant has right to possess the entire property
- No co-tenant may exclude another from any part
Ouster
If one co-tenant wrongfully excludes another from possession:
- Ousted tenant may recover for lost rental value
- Ousted tenant may recover for exclusive use by possessing tenant
Rents and Profits
- Out-of-possession tenant entitled to share of net rents from third parties
- Generally no duty to pay rent to other co-tenants for personal occupancy (absent ouster)
Expenses
| Expense Type | Contribution Rights |
|---|---|
| Necessary repairs | Modern trend: Can seek contribution if notified other co-tenants |
| Improvements | No right to contribution (may receive credit in partition) |
| Taxes/Mortgage | Co-tenant in sole possession: Credit only for amounts exceeding rental value |
Partition
Any co-tenant can seek judicial partition:
- Partition in kind: Physical division preferred if practical
- Partition by sale: Property sold, proceeds divided proportionally
Comparison Chart
| Feature | Tenancy in Common | Joint Tenancy | Tenancy by Entirety |
|---|---|---|---|
| Right of Survivorship | No | Yes | Yes |
| Unities Required | Possession only | TTIP (4) | TTIP + Marriage (5) |
| Unilateral Severance | N/A | Yes | No |
| Creditor Access | Yes | Yes (to tenant's share) | No (individual creditors) |
| Creation | Default | Express language | Married couples |
Exam Application Checklist
Use this section as an issue-spotting checklist, not just a memorization page. The California Bar usually tests 1.4 Concurrent Ownership through facts that force you to choose between two nearby doctrines. Your job is to identify the legally important distinction, state the rule cleanly, and then show why the facts fit or do not fit each element.
| Trigger to notice | How to analyze it |
|---|---|
| Tenancy in common is the default co-ownership form with no right of survivorship | Apply the element carefully to the facts before reaching a conclusion. Ask who benefits, who is burdened, what timing or document changes the rule, and what remedy or procedural result follows. |
| Joint tenancy requires the four unities (TTIP) and has right of survivorship | Apply the element carefully to the facts before reaching a conclusion. Ask who benefits, who is burdened, what timing or document changes the rule, and what remedy or procedural result follows. |
| Tenancy by the entirety is reserved for married couples and cannot be unilaterally severed | Apply the element carefully to the facts before reaching a conclusion. Ask who benefits, who is burdened, what timing or document changes the rule, and what remedy or procedural result follows. |
| A joint tenant can sever the joint tenancy by inter vivos conveyance, creating tenancy in common | Apply the element carefully to the facts before reaching a conclusion. Ask who benefits, who is burdened, what timing or document changes the rule, and what remedy or procedural result follows. |
Worked Hypothetical
A strong answer handles both the helpful and harmful facts. If the question gives a fact supporting Tenancy in common is the default co-ownership form with no right of survivorship, write the rule and apply that fact directly. If it also gives a fact pointing toward Joint tenancy requires the four unities (TTIP) and has right of survivorship, do not ignore it; explain whether it changes the element, creates an exception, supplies a defense, affects admissibility, changes the forum, or only changes the remedy.
If the fact pattern includes Tenancy by the entirety is reserved for married couples and cannot be unilaterally severed, identify whether that issue is a threshold question or something analyzed after liability. Finally, use A joint tenant can sever the joint tenancy by inter vivos conveyance, creating tenancy in common to decide the likely result.
Model Answer Paragraph
Use compact paragraphs: “The issue is whether the rule for Tenancy in common is the default co-ownership form with no right of survivorship applies. The rule requires [elements]. Here, [fact] supports the first element because [reason]. However, [counterfact] may trigger Joint tenancy requires the four unities (TTIP) and has right of survivorship because [reason]. Therefore, [result], subject to [exception/remedy].” This format is deliberately plain. It gives graders visible rule statements, visible fact application, and a conclusion without burying the answer in outline prose.
Multiple-Choice Tip
For MBE subjects, rewrite missed answer choices in the same structure. Identify why the correct answer resolves the disputed element and why each wrong answer is too broad, uses the wrong rule system, skips an exception, assumes a missing fact, or gives the wrong procedural/remedial consequence. For written-only subjects, turn each missed issue into a one-line rule card plus a two-sentence mini-application.
Self-Test
Before leaving this section, you should be able to list the elements from memory, name one exception or defense, identify the most likely California distinction if the subject calls for one, and explain what remedy, motion, evidentiary ruling, property result, fiduciary remedy, disciplinary consequence, or distribution consequence follows. If you can only recognize the doctrine after seeing the answer, do more practice before moving on.
A and B hold property as joint tenants with right of survivorship. A secretly executes a will devising his interest to his daughter C. A then dies. Who owns the property?
H and W hold property as tenants by the entirety. H's judgment creditor seeks to execute on the property to satisfy a debt. In most jurisdictions, the creditor will:
A, B, and C hold property as joint tenants. A conveys her interest to D. What is the resulting ownership?
Owen conveyed Blackacre "to Abby and Ben as joint tenants with right of survivorship." One year later, Abby conveyed her interest in Blackacre to Carlos. Abby then died intestate, survived by her son David as her sole heir. Carlos brings an action to partition Blackacre. What is the result?
Harry and Wendy, a married couple, acquired title to a residential property as tenants by the entirety. Without Wendy's knowledge or consent, Harry executed a deed purporting to convey his interest in the property to his friend Frank. Harry subsequently died. In an action to quiet title, the court should determine that the property is owned by:
In 2020, a father conveyed real property to his son and daughter as joint tenants with right of survivorship. In 2022, the son executed a mortgage on the property to a bank to secure a personal loan. In 2023, the son died intestate, survived by his only child as heir. At the time of the son's death, the mortgage remained unpaid. The jurisdiction follows the lien theory of mortgages. Who owns the property?